When a will is offered for probate, it is offered as the last will of the testator (the person whose will it is), made at a time when the testator knew what he was doing and who was not being unduly influenced to make the will.
The most common reasons to contest a will are because the testator did not know what he was doing or that some other person was controlling the testator to such a degree that the testator made a will that he would not have made if he wasn't under the influence of the other person. As evidence, the contestant would point out one of the items in the list as showing why the testator was not in control. Because the testator is usually an elderly person, they might not have been competent to make the will when they did or, even though they were competent, they were under such undue influence of another person that they made a will that they really didn't want to make.
|Grounds||Definition Of Grounds For Contesting A Will In Texas|
|Testamentary Capacity||The Testator: understands that he is making a will; understands the effect of the will; knows what property he has; knows his family; and, has sufficient memory to understand these elements and their relationship to each other.|
|Undue Influence||Undue Influence means that: an influence existed and was exerted; the influence undermined or overpowered the mind of the Testator at the time he signed the document; and, the Testator would not have signed the document but for the influence.|
|Execution of Will – Written Will||The will must: be in writing; signed by the Testator in person, who was of legal age; be attested by 2 or more credible witnesses who were at least 14; who signed the will in their own handwriting and in the presence of the Testator; and, the Testator signed the document with the intent to dispose of his property after his death.|
|Execution of Will – Hand Written||The will must: be wholly in the handwriting of the Testator; signed by him; who was then of legal age; and, the Testator signed the document with the intent to dispose of his property after his death.|
|Fraud||Fraud means: a person makes a material misrepresentation; the misrepresentation was made with knowledge of its falsity or was made recklessly without knowledge of the truth as a positive assertion; the misrepresentation was made with the intention of inducing the Testator to sign the document; and, Testator relied on the misrepresentation in signing the document.|
If any of the items listed in the Defintion Of Grounds For Contesting A Will in Texas are missing, then the will will probably be set aside. The grounds of the will contest have to be that the will is not the will of the testator either because the testator was not mentally competent, was mistaken or was under undue influence. Read more about the grounds for contesting will here.
Some other reasons for contesting a will are that an old, outdated will is offered for probate rather than the testator's most recent will; a forged will is offered; or, the will was not made with the formalities required by law.Time is of the essence in these types of matters so if you think that you need legal advice concerning the probate of a will, contact us immediately.
A law school professor has written a paper on six common reasons wills are contested. Professor Beyer lists the reasons as:
- Disinheritance of close family members in favor of a distant relative, friend or charity.
- Unequal treatment of children.
- Sudden or significant change in disposition plan.
- Imposition of excessive restrictions on bequests.
- Elderly or disabled testator.
- Unusual behavior of the testator.
The list above are reasons why people are contesting a will but are not the grounds for contesting a will. While this list is not exhaustive, most will contest are started because of one of the six items in the list.